THE STATE v CHITSUNGO and Another (60 of 2025) [2025] ZWHHC 60 (7 February 2025)

4 HH 60 - 25 CRB MRDP 233-4/24 THE STATE versus TAFADZWA CHITSUNGO and CATHERINE CHIRINDA HIGH COURT OF ZIMBABWE MAMBARA J HARARE; 7 February 2025 Review Judgment MAMBARA J: Introduction This review judgment concerns the criminal proceedings conducted in the case of State vs. Tafadzwa Chitsungo & Another before the Mashonaland East Provincial Magistrate Court. The accused persons were convicted of stock theft under Section 114 of the Criminal Law (Codification and reform) Act, [Chapter 9:23] and sentenced to a mandatory minimum term of nine years imprisonment. The accused persons, who were self-actors, raised several concerns during the trial, including allegations of coercion to make confessions and inconsistencies in witness testimonies. Upon reviewing the trial record, it is apparent that the trial court failed to observe crucial safeguards required in criminal proceedings, thereby compromising the integrity of the conviction and sentence. This judgment addresses key legal principles pertaining to confessions, contradictions in evidence, the court's duty to assist self- represented accused persons, and the standard of proof beyond reasonable doubt. Factual Background The accused persons, Tafadzwa Chitsungo and Catherine Chirinda, were initially arrested for unlawful entry into a residence. They were detained at a police base, where they spent the night. According to Officer Gahaza, during the midnight hours, the first accused approached him, seeking advice on how to avoid punishment for the unlawful entry charge. It is alleged that the first accused, unprompted, confessed to being involved in a stock theft incident in Murehwa. Officer Gahaza then inquired about outstanding stock theft cases, and upon receiving confirmation, he proceeded to arrest the accused persons for stock theft. The accused persons were subsequently charged with the theft of a whitish heifer belonging to Mercy Munapo. The prosecution’s case heavily relied on the alleged confessions made by the accused persons and certain indications they provided. It was also alleged that messages found on the accused’s phones linked them to Nicodemus Nyamuranga, a purported cattle buyer. The accused persons contended that the beast they slaughtered belonged to the first accused’s brother-in-law, Hopeful Courage Zhowera, and denied any involvement in the theft of Munapo’s heifer. The trial court dismissed their defence as an afterthought and found them guilty of stock theft. Legal Issues for Review Admissibility of ConfessionsHandling of Phone MessagesContradictions in Witness TestimoniesMombeshora’s Evidence and Unexplained KnowledgeNyamuranga’s Evidence and ConductJudicial Duty Towards Unrepresented Accused PersonsStandard of Proof Beyond Reasonable Doubt Admissibility of Confessions The admissibility of confessions is a critical aspect of criminal trials, as improper handling of such evidence can render a conviction unsafe. In this case, Officer Gahaza testified that the first accused person voluntarily confessed to the stock theft during a midnight interaction at the police base. However, the accused persons claimed that they were assaulted and coerced into making indications and confessions. In Zimbabwe, the law governing the admissibility of confessions is outlined in Section 256 of the Criminal Procedure and Evidence Act [Chapter 9:07]. For a confession to be admissible, it must be made freely and voluntarily without any undue influence. In S v Nkomo 1989 (3) ZLR 117 (S), the court stated: “Where a confession is disputed, the court must hold a trial-within-a-trial to determine its admissibility. This ensures that the accused’s rights are protected, and that the confession was made voluntarily.” The trial magistrate failed to conduct such an inquiry, despite the accused persons' consistent assertions that their confessions were obtained under duress. Furthermore, the involvement of police officers in obtaining confessions at odd hours raises significant procedural concerns. In S v Zuma 1995 (2) SA 642 (CC), the Constitutional Court of South Africa emphasized: “The reliability of a confession is crucial, and courts must be vigilant to ensure that it was made voluntarily and without coercion. The failure to properly evaluate the circumstances surrounding a confession can lead to a miscarriage of justice.” The failure to address the accused persons’ allegations of coercion constitutes a grave procedural irregularity warranting the exclusion of the confessions. Handling of Phone Messages The complainant, Mercy Munapo, testified that messages found on the accused persons’ phones linked them to Nicodemus Nyamuranga, a buyer of cattle. However, the prosecution did not produce these messages in court, nor were they subjected to scrutiny during the trial. This omission is a significant lapse in the prosecution’s case, as the messages were purportedly the causal link between the accused persons and the offence. In S v Makawa 1991 (1) ZLR 142 (H), the court held: “the prosecution bears the burden of presenting all material evidence to support its case. failure to produce critical evidence, especially where such evidence is in the possession of the state, undermines the credibility of the prosecution’s case.” The failure to produce the phone messages left a critical gap in the State’s case, undermining its credibility. The trial court’s reliance on the alleged confessions, without addressing the issue of the phone messages, constitutes a gross misdirection. The absence of these messages deprived the accused persons of an opportunity to challenge their contents and context. Moreover, Officer Gahaza, who allegedly discovered the messages, did not testify about their contents, further compounding the irregularity. Contradictions in Witness Testimonies Several contradictions emerged in the witness testimonies: The complainant described the horns of the stolen heifer as short and curved, while other witnesses provided differing descriptions. Nyamuranga claimed to have received the first accused’s contact number from Fusire, whereas Mombeshora testified differently. The most critical contradiction pertains to the beast allegedly belonging to Hopeful Courage Zhowera. During cross-examination, the first accused confronted Nyamuranga with the claim that they were discussing a different beast, owned by Zhowera. This issue was raised during the trial, yet the court erroneously concluded that it was an afterthought introduced in the defence case. In S v Makanyanga 1996 (2) ZLR 231 (H), the court emphasized: “Where there are material contradictions in evidence, the court must carefully evaluate the evidence to determine its reliability and credibility. It is the duty of the court to reconcile these contradictions and provide reasons for preferring one version over the other.” The trial court’s failure to address these contradictions and its dismissal of the brother-in- law’s testimony as an afterthought were grave errors. Mombeshora’s Evidence and Unexplained Knowledge Mombeshora’s evidence is particularly concerning. He testified that the accused persons failed to slaughter the beast and only managed to do so when the buyer, Nyamuranga, arrived at the scene. He further testified that the accused persons received payment of USD10 via EcoCash for the slaughtered beast. However, there is no evidence indicating that Mombeshora was present at the scene of the offence. This raises serious questions about how he came to possess such detailed knowledge of the events. In S v Chabata 1986 (2) ZLR 76 (S), the court noted: “Where a witness provides intricate details of a crime scene without having been present, it is incumbent upon the court to scrutinize the source of that information. Such evidence, if left unexplained, can point to the witness's complicity or ulterior motives.” The trial court failed to interrogate Mombeshora’s unexplained knowledge of the EcoCash transaction and the sequence of events. This failure is a significant oversight, especially given the accused persons’ contention that they did not steal the complainant’s beast. Nyamuranga’s Evidence and Conduct Nyamuranga’s evidence raises several issues of concern. He claimed that he received the first accused’s contact number from Fusire, but this was contradicted by other witnesses. Nyamuranga testified that he instructed the accused persons to tie the beast to a tree and cut its throat, yet he did not explain why he failed to show up to collect the meat as instructed. He further testified that he asked the accused to contact the police and members of the community after the beast had been slaughtered, raising questions about his role in the transaction. This sequence of events is suspicious and points to possible complicity on his part. The court failed to critically analyze his conduct or consider the possibility that Nyamuranga was more than just an innocent buyer. In S v Shoniwa 1987 (1) ZLR 215 (S), the court stated: “Where a witness's conduct raises questions about their involvement or credibility, the court must exercise caution before accepting their evidence as truthful.” In the same judgment, S v Shoniwa supra, the court held: “The conduct of witnesses must be scrutinized for credibility and possible ulterior motives. Where a witness’s actions raise suspicions of complicity, the court must exercise caution in accepting the testimony” Nyamuranga’s actions suggest that he may have been complicit in the offence or attempting to distance himself from it. His failure to follow up on the slaughter and his contradictory instructions warranted further investigations. The court’s acceptance of Nyamuranga’s testimony without addressing these anomalies was a misdirection. The trial court should have considered the possibility that Nyamuranga had ulterior motives, which could have explained his contradictory instructions. Judicial Duty Towards Unrepresented Accused Persons It is a well-established principle in Zimbabwean law that courts have a duty to assist self- represented accused persons. In S v Chabata 1986 (2) ZLR 76 (S), the court held: “The judicial officer must ensure that an unrepresented accused understands the proceedings and is not prejudiced by their lack of legal knowledge. This duty is particularly important in criminal trials where the accused faces severe consequences.” The trial magistrate failed to provide adequate assistance to the accused persons. There is no indication that the court explained the legal implications of their confessions or the importance of cross-examining witnesses effectively. This failure constitutes a miscarriage of justice. Standard of Proof Beyond Reasonable Doubt The State bears the burden of proving the accused persons' guilt beyond a reasonable doubt. In S v Manyange 2003 (1) ZLR 21 (H), the court emphasized: “Where there is doubt, the accused must be given the benefit of that doubt. The court must be satisfied beyond reasonable doubt before convicting an accused person.” The principle established in R v Difford 1937 AD 370 is that: “An accused must be acquitted if their version of events is reasonably possibly true. It is better to let one hundred guilty persons go free than to convict a single innocent person.” The accused persons' assertion that they were coerced into confessing, coupled with the contradictions in the State’s case, creates a reasonable doubt that should have resulted in an acquittal. Conclusion In light of the foregoing analysis, it is evident that the trial court failed to observe essential procedural safeguards. The trial magistrate did not conduct a trial-within-a-trial to determine the admissibility of the confessions, failed to reconcile contradictions in the evidence, neglected to address Mombeshora’s unexplained knowledge, and did not assist the unrepresented accused persons. These procedural flaws render the conviction unsafe. Accordingly: The conviction and sentence of Tafadzwa Chitsungo and Catherine Chirinda are hereby quashed.The matter is remitted to the Magistrates Court for a retrial before a different magistrate, if the State so elects.The Registrar is directed to bring this judgment to the attention of the Judicial Service Commission for appropriate action. Mambara J: ………………………………………………… Mandaza J: ………………………………………….…… Agrees 4 HH 60 - 25 CRB MRDP 233-4/24 4 HH 60 - 25 CRB MRDP 233-4/24 THE STATE versus TAFADZWA CHITSUNGO and CATHERINE CHIRINDA HIGH COURT OF ZIMBABWE MAMBARA J HARARE; 7 February 2025 Review Judgment MAMBARA J: Introduction This review judgment concerns the criminal proceedings conducted in the case of State vs. Tafadzwa Chitsungo & Another before the Mashonaland East Provincial Magistrate Court. The accused persons were convicted of stock theft under Section 114 of the Criminal Law (Codification and reform) Act, [Chapter 9:23] and sentenced to a mandatory minimum term of nine years imprisonment. The accused persons, who were self-actors, raised several concerns during the trial, including allegations of coercion to make confessions and inconsistencies in witness testimonies. Upon reviewing the trial record, it is apparent that the trial court failed to observe crucial safeguards required in criminal proceedings, thereby compromising the integrity of the conviction and sentence. This judgment addresses key legal principles pertaining to confessions, contradictions in evidence, the court's duty to assist self- represented accused persons, and the standard of proof beyond reasonable doubt. Factual Background The accused persons, Tafadzwa Chitsungo and Catherine Chirinda, were initially arrested for unlawful entry into a residence. They were detained at a police base, where they spent the night. According to Officer Gahaza, during the midnight hours, the first accused approached him, seeking advice on how to avoid punishment for the unlawful entry charge. It is alleged that the first accused, unprompted, confessed to being involved in a stock theft incident in Murehwa. Officer Gahaza then inquired about outstanding stock theft cases, and upon receiving confirmation, he proceeded to arrest the accused persons for stock theft. The accused persons were subsequently charged with the theft of a whitish heifer belonging to Mercy Munapo. The prosecution’s case heavily relied on the alleged confessions made by the accused persons and certain indications they provided. It was also alleged that messages found on the accused’s phones linked them to Nicodemus Nyamuranga, a purported cattle buyer. The accused persons contended that the beast they slaughtered belonged to the first accused’s brother-in-law, Hopeful Courage Zhowera, and denied any involvement in the theft of Munapo’s heifer. The trial court dismissed their defence as an afterthought and found them guilty of stock theft. Legal Issues for Review Admissibility of Confessions Handling of Phone Messages Contradictions in Witness Testimonies Mombeshora’s Evidence and Unexplained Knowledge Nyamuranga’s Evidence and Conduct Judicial Duty Towards Unrepresented Accused Persons Standard of Proof Beyond Reasonable Doubt Admissibility of Confessions The admissibility of confessions is a critical aspect of criminal trials, as improper handling of such evidence can render a conviction unsafe. In this case, Officer Gahaza testified that the first accused person voluntarily confessed to the stock theft during a midnight interaction at the police base. However, the accused persons claimed that they were assaulted and coerced into making indications and confessions. In Zimbabwe, the law governing the admissibility of confessions is outlined in Section 256 of the Criminal Procedure and Evidence Act [Chapter 9:07]. For a confession to be admissible, it must be made freely and voluntarily without any undue influence. In S v Nkomo 1989 (3) ZLR 117 (S), the court stated: “Where a confession is disputed, the court must hold a trial-within-a-trial to determine its admissibility. This ensures that the accused’s rights are protected, and that the confession was made voluntarily.” The trial magistrate failed to conduct such an inquiry, despite the accused persons' consistent assertions that their confessions were obtained under duress. Furthermore, the involvement of police officers in obtaining confessions at odd hours raises significant procedural concerns. In S v Zuma 1995 (2) SA 642 (CC), the Constitutional Court of South Africa emphasized: “The reliability of a confession is crucial, and courts must be vigilant to ensure that it was made voluntarily and without coercion. The failure to properly evaluate the circumstances surrounding a confession can lead to a miscarriage of justice.” The failure to address the accused persons’ allegations of coercion constitutes a grave procedural irregularity warranting the exclusion of the confessions. Handling of Phone Messages The complainant, Mercy Munapo, testified that messages found on the accused persons’ phones linked them to Nicodemus Nyamuranga, a buyer of cattle. However, the prosecution did not produce these messages in court, nor were they subjected to scrutiny during the trial. This omission is a significant lapse in the prosecution’s case, as the messages were purportedly the causal link between the accused persons and the offence. In S v Makawa 1991 (1) ZLR 142 (H), the court held: “the prosecution bears the burden of presenting all material evidence to support its case. failure to produce critical evidence, especially where such evidence is in the possession of the state, undermines the credibility of the prosecution’s case.” The failure to produce the phone messages left a critical gap in the State’s case, undermining its credibility. The trial court’s reliance on the alleged confessions, without addressing the issue of the phone messages, constitutes a gross misdirection. The absence of these messages deprived the accused persons of an opportunity to challenge their contents and context. Moreover, Officer Gahaza, who allegedly discovered the messages, did not testify about their contents, further compounding the irregularity. Contradictions in Witness Testimonies Several contradictions emerged in the witness testimonies: The complainant described the horns of the stolen heifer as short and curved, while other witnesses provided differing descriptions. Nyamuranga claimed to have received the first accused’s contact number from Fusire, whereas Mombeshora testified differently. The most critical contradiction pertains to the beast allegedly belonging to Hopeful Courage Zhowera. During cross-examination, the first accused confronted Nyamuranga with the claim that they were discussing a different beast, owned by Zhowera. This issue was raised during the trial, yet the court erroneously concluded that it was an afterthought introduced in the defence case. In S v Makanyanga 1996 (2) ZLR 231 (H), the court emphasized: “Where there are material contradictions in evidence, the court must carefully evaluate the evidence to determine its reliability and credibility. It is the duty of the court to reconcile these contradictions and provide reasons for preferring one version over the other.” The trial court’s failure to address these contradictions and its dismissal of the brother-in- law’s testimony as an afterthought were grave errors. Mombeshora’s Evidence and Unexplained Knowledge Mombeshora’s evidence is particularly concerning. He testified that the accused persons failed to slaughter the beast and only managed to do so when the buyer, Nyamuranga, arrived at the scene. He further testified that the accused persons received payment of USD10 via EcoCash for the slaughtered beast. However, there is no evidence indicating that Mombeshora was present at the scene of the offence. This raises serious questions about how he came to possess such detailed knowledge of the events. In S v Chabata 1986 (2) ZLR 76 (S), the court noted: “Where a witness provides intricate details of a crime scene without having been present, it is incumbent upon the court to scrutinize the source of that information. Such evidence, if left unexplained, can point to the witness's complicity or ulterior motives.” The trial court failed to interrogate Mombeshora’s unexplained knowledge of the EcoCash transaction and the sequence of events. This failure is a significant oversight, especially given the accused persons’ contention that they did not steal the complainant’s beast. Nyamuranga’s Evidence and Conduct Nyamuranga’s evidence raises several issues of concern. He claimed that he received the first accused’s contact number from Fusire, but this was contradicted by other witnesses. Nyamuranga testified that he instructed the accused persons to tie the beast to a tree and cut its throat, yet he did not explain why he failed to show up to collect the meat as instructed. He further testified that he asked the accused to contact the police and members of the community after the beast had been slaughtered, raising questions about his role in the transaction. This sequence of events is suspicious and points to possible complicity on his part. The court failed to critically analyze his conduct or consider the possibility that Nyamuranga was more than just an innocent buyer. In S v Shoniwa 1987 (1) ZLR 215 (S), the court stated: “Where a witness's conduct raises questions about their involvement or credibility, the court must exercise caution before accepting their evidence as truthful.” In the same judgment, S v Shoniwa supra, the court held: “The conduct of witnesses must be scrutinized for credibility and possible ulterior motives. Where a witness’s actions raise suspicions of complicity, the court must exercise caution in accepting the testimony” Nyamuranga’s actions suggest that he may have been complicit in the offence or attempting to distance himself from it. His failure to follow up on the slaughter and his contradictory instructions warranted further investigations. The court’s acceptance of Nyamuranga’s testimony without addressing these anomalies was a misdirection. The trial court should have considered the possibility that Nyamuranga had ulterior motives, which could have explained his contradictory instructions. Judicial Duty Towards Unrepresented Accused Persons It is a well-established principle in Zimbabwean law that courts have a duty to assist self- represented accused persons. In S v Chabata 1986 (2) ZLR 76 (S), the court held: “The judicial officer must ensure that an unrepresented accused understands the proceedings and is not prejudiced by their lack of legal knowledge. This duty is particularly important in criminal trials where the accused faces severe consequences.” The trial magistrate failed to provide adequate assistance to the accused persons. There is no indication that the court explained the legal implications of their confessions or the importance of cross-examining witnesses effectively. This failure constitutes a miscarriage of justice. Standard of Proof Beyond Reasonable Doubt The State bears the burden of proving the accused persons' guilt beyond a reasonable doubt. In S v Manyange 2003 (1) ZLR 21 (H), the court emphasized: “Where there is doubt, the accused must be given the benefit of that doubt. The court must be satisfied beyond reasonable doubt before convicting an accused person.” The principle established in R v Difford 1937 AD 370 is that: “An accused must be acquitted if their version of events is reasonably possibly true. It is better to let one hundred guilty persons go free than to convict a single innocent person.” The accused persons' assertion that they were coerced into confessing, coupled with the contradictions in the State’s case, creates a reasonable doubt that should have resulted in an acquittal. Conclusion In light of the foregoing analysis, it is evident that the trial court failed to observe essential procedural safeguards. The trial magistrate did not conduct a trial-within-a-trial to determine the admissibility of the confessions, failed to reconcile contradictions in the evidence, neglected to address Mombeshora’s unexplained knowledge, and did not assist the unrepresented accused persons. These procedural flaws render the conviction unsafe. Accordingly: The conviction and sentence of Tafadzwa Chitsungo and Catherine Chirinda are hereby quashed. The matter is remitted to the Magistrates Court for a retrial before a different magistrate, if the State so elects. The Registrar is directed to bring this judgment to the attention of the Judicial Service Commission for appropriate action. Mambara J: ………………………………………………… Mandaza J: ………………………………………….…… Agrees